Betts v. Sholton

Cons, J.

Sections 24 and 25, ch. 117, R. S., point out the steps necessary to be taken to perfect the appeal from an order of the county court sitting in prcf bate. In this case it would seem, from the affidavit used in support of the motion to dismiss, that the appellant gave the proper notice, and filed the bond prescribed in those sections. The court likewise made an order that the appellant give notice of the appeal to the adverse party, as required by section 26. But the appellant neglected to give this notice, and failed to procure and file a copy of the record and proceedings appealed from, as required by section 27. Thereupon the circuit court dismissed the appeal, upon motion, because no return or certified copy of the proceedings had been filed in that court.

We suppose it is the more regular practice, where the appellant fails to prosecute the appeal with reasonable diligence, for the circuit court, upon evidence that the appeal was taken, and on motion of any person interested in the case, to affirm the judgment or order appealed from, as directed by section 35. But still we cannot see that the appellant has any reason to complain that the appeal was dismissed instead of the order being affirmed, as it might have been under this last section. The irregularity can work her no prejudice. And it is quite immaterial to her whether the order was affirmed or the appeal dismissed. Her rights are not injuriously affected by the dismissal, any more than they would be by an affirmance of the order. Why, therefore, should she complain of the irregularity, which causes no sort of disadvantage to her ? We think she cannot ask for a reversal of the order of dismissal, unless that order be to her injury or prejudice. Hughes v. Stickney, 13 Wend. 280, and Alling v. Shelton, 16 Conn. 436. It is said that the appellant had a right to insist upon a judgment of affirmance by the circuit court;, so that she might at once appeal from that judgment to this court. It is however very manifest, that, upon such an appeal ^¡o this «court, the merits of the order made by the county court could not be inquired into, but merely the question whether the appellant had prosecuted her appeal with due diligence. And when it is assumed, as it must be, that the circuit court should regularly have affirmed the order upon that. ground, how would the appellant have been benefited by an appeal to this court? It seems to us very clear that she would not have been. And in this respect the case is distinguishable from that of In re Newland, 12 Wis. 490. There the circuit court, after a hearing upon the merits, dismissed the appeal because it found no sufficient reason for reversing the order appealed from. And it was held that the administrator had a right to complain of this order of dismissal, and to insist upon an order of affirmance ; that, in respect to pursuing the litigation further, the order dismissing the appeal placed him. in a wrong position. But no such reason applies here.

By the Court.— The order of the circuit court is affirmed.